Pathways to the Lawful Exercise of the Right to Freedom of Expression and Right to Freedom to Peaceful Assembly and Association in Nigeria: A Look into the Right to Peaceful Assembly, Rally and Protest under the Nigerian Constitution.

Pathways to the lawful Exercise of the right to Freedom of Expression and RIGHT TO Freedom to Peaceful Assembly and Association in Nigeria: A Look into the Right to Peaceful Assembly, Rally and Protest Under The Nigerian Constitution.   

Abstract

Nigeria is a democratic nation in which all things are permitted within the confines of justifiable limitations of the law. Owing to this, the Nigerian grundnorm makes provisions for basic rights which are categorically spelt out. In the light of this, this paper aims at looking into the pathways for the lawful exercise of the right to freedom of expression and right to freedom of peaceful assembly and association in Nigeria. The doctrinal method of research approach was adopted using the primary, secondary and virtual sources. The paper concluded by giving recommendations on how these basic rights can be exercised within the confines of reasonable justifiable limitations in a democratic society. Also, the popular misconception of the right to riot is expelled, discontinuance and corrected. 

 

Key Words: Fundamental human rights, protest, rally, interest, society, orderliness. 

 

Introduction

In every democratic and constitutional society, the right to freedom of expression and right to freedom of peaceful and assembly, rally, protect and association of the people are expressly provided for and guaranteed in the constitution of such society. Owing to the global spread of democracy, each state in the global community has incorporated these basic inalienable and fundamental rights in their constitution. This implies that in every democratic society, the citizens have the freedom to express their opinion, and engage in a lawful and peaceful assembly or gathering to protest against bad government policies as it is believed that there is a social contract between the government and the people to see that the government is accountable to the people in respect of the administration of the common resources of the society. However, it is to be noted that this right to freedom of peaceful assembly and association and is a qualified right as it can be lawfully restrained within the confines of law reasonably justifiable in a democratic society.

 The right to peaceful assembly, rally and peaceful protect is fully recognized as a fundamental right in western democracies such as the USA, UK, Germany, France, Canada and so forth, public places such as Hyde Park, Trafalgar Square, the Houses of Parliament, and conference venues of political leaders and so forth, are paraded by individuals and persons carrying placard, billboard and other conspicuous things to show their concern for an unfavorable government decisions, actions, policies and also other unfavorable and unacceptable acts in the country. This is being done under the watchful eyes of the security agency to afford the protest being overtaken by unscrupulous groups and in order to avoid riot and breach of peace in the society. For instance, on the issue of racial discrimination in U.S.A, U.K and other European countries there have been many protests against this act by individuals and groups to express their concern on the issue.     

Here in Nigeria, the constitution provides for the right to freedom of peaceful assembly and association. The citizens of Nigeria have in various instances exercised this right to express their disapproval against many bad government policies, actions and other unacceptable social occurrences. The Nigerian Labour Congress, ASUU, NGO and other private persons had one time or the other engaged in protest in Nigeria. The EndSAR Protest of October, 2023 is also an illustration of example of protest being carried out in Nigeria. The right to lawful protest and gathering is guaranteed in Nigeria. However, while exercising this right, caution must be observed in order to avoid breach of peace and violation of other people’s right.   

 1.0 Background to the Right to Peaceful Assembly, Rally, Protest and Association in Nigeria.

The writer would segment the provision of section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) into two parts. Firstly, the right to freedom of peaceful assembly, gathering, rally and protest. Secondly, the right to form or join any lawful association of one's choice and seek for the propagation and protection of the interest and objectives of such lawful association whether social, political, religious, economic or educational etc. However, for the purpose of this article, the writer will focus on the first arm of the section which provides for the right to peaceful assembly, rally gathering and protest. 

On the first arm of the constitutional provision of section 40 (supra), the right of every person is guaranteed for peaceful assembly otherwise called protest whether against the government, private persons, or any other entity. This right can be aligned with the section 39 CFRN, 1999  which guarantees the right to freedom of expression and the press. These two inalienable basic rights are fundamental and germane in a democratic institution. They avail the citizens opportunity to express their views, opinion, agitation, concerns, burdens, problems and needs to their representatives in government. 

The right to freedom of peaceful assembly otherwise called right to protest is only expressly obtainable and exercisable in a democratic society. Nigeria has been a democratic nation for more than two decades now and her citizens have been exercising this right with little or hardened restraint from the government. 

Going through the pages of the events of permissibility of the right to protest in Nigeria, it was observed that there had been a time whereby before this right could be exercised the police as an institution of the government had to give license to anyone who might want to exercise this basic right. Pursuant to section 6(2) of the Public Order Acts the police of the rank of Inspector or above was empowered to stop any assembly for which no license has been obtained. This was the archaic draconic law restraining the free exercise of the right to peaceful assembly otherwise called right to protest in Nigeria. It seems odd and unthinkable how the government would give license to peaceful assembly, gathering or protest that is against it. This was a gross violation of this fundamental human right then during the Dark Ages of the enjoyment of this right. 

In the case of CHUKWUMA V.C.O.P. (2005) JELR 52796(CA) the Court of Appeal upheld the provision of the s.6 (2) of the Public Order Acts (supra) and held that the appellant required a police permit to hold the meeting of their association. With absolute reverence to the Justices of the Court of Appeal in this case, this decision was reached per incuriam because the honourable court either inadvertently or advertently failed to advert its mind to the constitutional provision of section 1(3) of the CFRN , 1999 which gives supremacy to the constitution above any other laws in Nigeria. The section provides, "If any law is inconsistent with the provision of this constitution, this constitution shall prevail, and such other law shall to the extent of inconsistency be void." This had been given judicial approval in the case of National Assembly v President of FRN (2001)

However, section 6(2) of the Public Order Acts had been held null and void in the case of IGP V ANPP (2007) 18 NWLR (PT1066) 457 by the Court of Appeal and the court went further to examine the provisions of the constitution vis-a-vis the power of the police to insist on a permit before allowing peaceful meeting or protest and held as follows: 

“The police have no powers under the act to cancel marches on the ground that the organizers have not obtained a license or permit. The learned counsel referred to the experience of the UK where all that is required under the public order act is to give six days noticed in advance to the police, so as to make adequate security arrangements for the protester or conveners of public meetings. The fear that any group may take over a peaceful protest cannot be a legal justification for banning or proscribing rallies or protest. There are no peculiarities that can justify the restriction of the right to hold public meetings without license." (Emphasis mine).

Also in the case of Thomas v Collins 323 US 516 (1914) a statute required a labour organizer to obtain a license before he could address an assembly of labour. The defendant unionist ignored the statute and spoke. His conviction for speaking without a license was overturned on appeal because the statute was an infringement of his constitutional rights to speak. He is not required to submit to the unconstitutional law, and apply for the license and be refused the right to speak before he can challenge the validity of the law. In the case JUSTICE WILEY B. RUTLEDGE vehemently and poignantly buttressed on the sanctity and necessity of this right thus: "The right is a national right, federally guaranteed. There are some modicum of freedom of thought, speech and assembly, which all citizens of the republic may exercise throughout its length and breath, which no state, nor all together, not the nation itself, can prohibit, restrain or impede."

By virtue of s.40 Constitution of the Federal Republic of Nigeria, 1999 (as amended) (supra) the right to peaceful assembly, rally, gathering, meetings and protest is guaranteed. This has been given uncorrupted judicial anointing and approval by the last hope of the common man (the law court). Furthermore, the court has gone further to remove the unlawful shackle and unnecessary restrictions that might be a hurdle to the free and lawful enjoyment and exercise of this inalienable right.

2.0 Pathway to Lawful exercise of the Right to Peaceful Assembly, Rally and Protest. 

It has been established that it will be unconstitutional for the government or any private individuals to hinder people from exercising their basic rights. However, an uncurtail freedom is disastrous. The citizens must know that the Nigerian Constitution only provides for the right to peaceful assembly, rally and protest. Riot is unlawful by virtue of s.71 of the Criminal Code which provides that “Any person who takes part in a riot is guilty of a felony, and is liable to imprisonment for three years”.

 According to Emeka Odikpo " Enforcement of Fundamental Right in Nigeria", Lagos: Princeton & Associate Co LTD: 2020 pg55 "In the context of right to protest, this remains an inalienable right of man, subject to non-interference with the right of others. Thus, if protesters can design a way to protest without interfering with such rights of third parties, such as right of way, then they do not need any permit to protest." In the exercise of this right to peaceful assembly, rally and protest caution must be observed as to see that this lawful demonstration doesn't lead to riot. Appropriate measures must be taken by the organizers to see that the assembly is peaceful in the stricto sensu of it so as not to lead to public disturbance, disorderliness and breach of peace in the society. 

The government will be justified if it takes measures reasonably justifiable in a democratic society to stop any gathering or meeting that is potentially unlawful and detrimental to the peace of the society. The Police and other law enforcement agencies may be deployed to stop or disperse an unlawful gathering; or a potentially explosive gathering. Also, pursuant to s. 275 of the Criminal Code, the police, peace officer or private individuals can intervene to prevent breach of peace by using reasonable force.

3.0 Recommendations for Lawful exercise of Right to Freedom of Peaceful Assembly, Rally and Protest in Nigeria. 

In order to reconcile the interests of the protesters, the government and the society at large, several measures must be put in place. Although the court has invalidated the statutory provision of obtaining license before engaging in any protest, yet the presence of security agencies during the course of the peaceful protest cannot be undermined. The reason for this is to prevent the peaceful protest, assembly, rally or gathering from being hijacked by miscreants. Also, police and other security agencies that may be present at the protest or rally must not be a terror. The purpose of having them around is to maintain orderliness and smooth running of the protest. This is what is obtainable in countries like U.K., U.S. A, France, Germany etc. However, should the lawful protest turned unlawful, the police and other security agencies are enjoined to use reasonable and professional force required in such circumstance to quell the unlawful protest. Right to life must be respected in all circumstances.

In addition, prevention is better than cure, the government itself should be quick and pragmatic in responding to the citizens’ outcry. The government is seemed as steward of the common goods and resources of the society. They must always be ready to give proper account of their stewardship. The ugly incident of End SAR Protest must not reoccur.

Lastly, video coverage of protest and full reportage in all media houses should be allowed in order for the public to be aware of it and not to be put in the dark. And to avoid the spread of rumor and bias reportage. This will lessen the probability of a peaceful protest metamorphosing to riot. 

Conclusion

Fundamental rights are basic liberties recognized and enshrined in the constitution. These rights are inalienable. However, they are to be exercised within the confines of reasonably justifiable limitations in a democratic society. The Nigerian grundnorm provides for the right to peaceful assembly, rally, gathering, demonstration, protest and association. The law permits the government to take reasonable measures to forestall and stop riot and unlawful gathering or rally in the society. The writer has made some recommendations on how right to peaceful assembly, rally, demonstration and protest can be exercised within the confines of reasonably justifiable limitations in a democratic be exercised within the confines of reasonably justifiable limitations in a democratic society. Right to peaceful assembly and association is fundamental, basic and inalienable for all citizens of Nigeria. 

*OLAWUNI SAMUEL IDOWU alias Sanafflatus 

 

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